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Filed 2/29/96






Plaintiff - Appellee,

No. 95-1168

(D.C. No. 94-CR-74-N)

Defendant - Appellant.

(D. Colorado)


Before ANDERSON, BARRETT, and LOGAN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This cause is therefore ordered
submitted without oral argument.
On February 3, 1995, defendant-appellant Vu Bui pled guilty to conspiracy to
commit bank fraud in violation of 18 U.S.C. 371, 1344, and 2, and bank fraud and

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of the 10th Cir. R. 36.3.

aiding and abetting in violation of 18 U.S.C. 1344 and 2. He was subsequently

sentenced to thirty-three months imprisonment. Bui appeals that sentence contending that
the district court erred in not granting a two-level downward adjustment for acceptance of
responsibility. We affirm.
The uncontested facts show that Bui was part of an extensive Vietnamese
organized crime operation originating in southern California. The scheme involved the
production of counterfeit checks which were then cashed at financial institutions
throughout the United States. Bui held the position of driver, which entailed obtaining
the cars to be driven to various banks, distributing the counterfeit checks to face men
(lower-level men who passed checks), and paying these men their cut of the counterfeit
Bui was originally arrested on March 3, 1994, and was subsequently released on a
$5,000 unsecured bond. On August 1, 1994, Bui ceased reporting to a U.S. Pretrial
Services Office in California and later failed to appear for a hearing in the instant case.
Because of Buis non-availability, the trial of his co-defendant, Jeffery Dettloff, was
postponed. On November 14, 1994, a second warrant for Buis arrest was issued and on
November 28, 1994, Bui was rearrested. As part of a plea agreement, Bui and the
government agreed to a nonbinding guideline sentence calculation which included a twopoint enhancement for obstruction of justice pursuant to USSG 3C1.1, and a two-point
decrease for acceptance of responsibility pursuant to USSG 3E1.1.

At the sentencing hearing on April 14, 1995, the district court refused to grant an
adjustment for acceptance of responsibility, relying primarily on Application Note 4
under 3E1.1, which reads as follows:
4. Conduct resulting in an enhancement under 3C1.1 (Obstructing or
Impeding the Administration of Justice) ordinarily indicates that the
defendant has not accepted responsibility for his criminal conduct. There
may, however, be extraordinary cases in which adjustments under both
3C1.1 and 3E1.1 may apply.
USSG 3E1.1, comment. (n.4).
We review the acceptance of responsibility determination as a question of fact
under the clearly erroneous standard. 18 U.S.C. 3742(e); United States v. Janus
Indus., 48 F.3d 1548, 1560 (10th Cir. 1995). Accordingly, the trial courts conclusion of
whether a defendant has accepted responsibility is subject to great deference on review
and should not be disturbed unless it is without foundation. Id.; see also USSG 3E1.1,
comment. (n.5) (Because [t]he sentencing judge is in a unique position to evaluate a
defendants acceptance of responsibility . . . the sentencing judge[s determination] is
entitled to great deference on review.). The defendant bears the burden of proof and the
quantum of proof is a preponderance of evidence. United States v. Spedalieri, 910 F.2d
707, 712 (10th Cir. 1990).
Bui argues that, because he readily admitted his role as a driver and made
additional statements regarding his role in the operation, he is entitled to the reduction.
He does not dispute the obstruction of justice enhancement due to his abscondence. He

contends, however, that his wrongdoing does not preclude a finding of acceptance of
responsibility because, he argues, he fled during Dettloffs trial not to impede justice, but
to protect himself. Regardless of Buis motive, he did not voluntarily surrender after
violating the conditions of his parole and his disappearance as a key witness during
Dettloffs trial cost the prosecutors and trial court additional time, effort, and expense.
Buis arguments are unavailing as he has not met his burden of proof in showing that this
is an extraordinary case, in which adjustments for both obstruction of justice under
3C1.1 and acceptance of responsibility under 3E1.1 would be appropriate.
Accordingly, the district courts denial of Buis request that he be given a decrease for
acceptance of responsibility is not clearly erroneous. See, e.g., United States v. Fetherolf,
21 F.3d 998, 1001 (10th Cir. 1994); Spedalieri, 910 F.2d at 712.
Stephen H. Anderson
Circuit Judge